MDB Capital Pty Ltd (Migration)

MDB Capital Pty Ltd (Migration) [2021] AATA 963 (12 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MDB Capital Pty Ltd
CASE NUMBER:  1806697
HOME AFFAIRS REFERENCE(S):          BCC2017/4093425
MEMBER:Mark O'Loughlin
DATE:12 February 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 February 2021 at 3:54pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Graphic Designer – financial capacity – employment on a full-time basis for at least 2 years – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 3 November 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied that the applicant had provided sufficient documentation to demonstrate the financial viability of the business and did not therefore satisfy the delegate that the offer of 2 years’ employment was sustainable.
The applicant appeared before the Tribunal on 27 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Maria Camposano.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has had regard to the application for approval which was submitted by the applicant to the department it finds that the application was made on the appropriate form.
There is no evidence that the application was not accompanied by the fee prescribed and the Tribunal infers from the fact that the application proceeded to decision that the appropriate fee was paid.
The Tribunal finds that the application contains a written certification that the nominator has not engaged in certain conduct the contravenes section 245AR (1) of the Act.
The Tribunal finds that the application identifies a person who holds a subclass 457 visa granted on the basis of satisfying cl. 457.223 (4).
The Tribunal finds that the application a identifies the occupation of Graphic Designer that is listed in ANZSCO.
The Tribunal finds that the application identifies a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Tribunal has regard to documents in the departmental file that show the applicant is the standard business sponsor who last identified the nominee in a nomination made under section 140 GB of the Act.
The Tribunal has regard to documents provided by the applicant and to evidence given orally by the applicant’s representative, Marion Benedetto, and finds that the applicant is actively and lawfully operating a business in Australia.
The Tribunal has had regard to departmental records is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The Tribunal has heard evidence that accepts that the nominee was granted a subclass 457 visa in March 2015 to work in the nominated occupation of Graphic Designer for the applicant.
This nomination was lodged in November 2017.
The Tribunal has had regard to evidence on behalf of the applicant and to payroll and other documents and is satisfied that the applicant has employed the nominee on a subclass 457 visa for a total period of at least 2 years and that the employment in the position has been full-time and undertaken in Australia.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
As regulation 5.19 (3) (c) (i) applies to the applicant the applicant will need to satisfy regulation 5.19 (3) (d).
The delegate was not satisfied that the company had demonstrated sufficient profitability to support an assertion that it would continue to employ the applicant on a full-time basis for at least 2 years.
The Tribunal has had regard to documents provided by the applicant indicating that there is an agreement to employ the nominee for 2 years from August 2020. Ms Di Benedetto sure the Tribunal that the agreement was drawn in anticipation of the hearing in about August 2020 the company fully intends to employ the nominee for at least 2 years.
The Tribunal accepts this evidence.
The Tribunal has had the benefit of financial documents including tax documents, profit and loss statements, and BAS statements and further the oral evidence of Ms Di Benedetto.
The Tribunal is satisfied that the company has the financial capacity to employ the nominee and will maintain its capacity to do so for at least 2 years.
The Tribunal is satisfied that the terms of the nominee’s employment did not expressly exclude the possibility of extending the period beyond 2 years from the date of this decision and further accepts the evidence on behalf of the applicant that the hoe to employ the nominee for longer than that.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant has provided the results of online searches relating to positions in the role of graphic designer at about the time that the applicant employed the nominee that is satisfied that the terms and conditions of employment at about the time of the application in mid-2017 were no less favourable than market terms and in particular the apparent range was between $50,000 and $70,000 per annum.
The applicant was paying the nominee a little over $62,000 at that stage in your income is now increased to $70,686 per annum.
The Tribunal is satisfied that the terms and conditions applicable to the position are no less favourable than those that would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
There is no evidence of any relevant training requirements.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence of any adverse information known to immigration.
: Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence that the applicant does not have a satisfactory record of compliance with workplace relation laws in New South Wales where it conducts its business.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has regard to the evidence of Ms Di Benedetto that is satisfied that there is a genuine need for the nominator to employ the person as a paid employee to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(3)(i) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mark O'Loughlin
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 963

12 February 2021

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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